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. . . .And a few other claims too.  But the punitive damages decision jumped out at us as something we don’t see that often.  In fact, the court in Nunez v. Coloplast Corp., — F.Supp.3d –, 2020 WL 2561364 (S.D. Fla. May 20, 2020) only had conflicting precedent to go on.  But to the court’s credit, it called a strike, a strike.  That analogy works if plaintiff is the batter and we’re talking about a swing and a miss.  If the plaintiff is the pitcher in this scenario, then the court called a ball, a ball.  Plaintiff’s evidence was more than a bit outside.  If the plaintiff was in centerfield, she dropped the ball.  If the plaintiff was playing shortstop, the ball bounced through her legs.  We think you get the point.  It’s June and we are craving baseball season.  Or any live sporting event for that matter.  In the meantime, missing baseball made us recall a classic Looney Tunes.

Back to the case.  Plaintiff brought suit alleging complications following surgery with defendant’s surgical mesh medical device.  Defendant moved for summary judgment on all of plaintiff’s claims except for design defect.  Defendant won on each count it moved against.

First up – failure to warn.  The court reviewed the Instructions for Use (“IFU”) that accompanied the product and found them to adequate as a matter of law.  The court found that they covered the very injury plaintiff alleged she suffered, including data from clinical studies of those adverse events.  Id. at *4.  Plaintiff argued that the IFU were inadequate because they characterized the risks as “potential.”  However, relying on Eleventh Circuit case law, the court ruled that a product label need only “make apparent the potential harmful consequences.”  Id. (citation omitted).  Really any other result would be absurd.  Most risks are “potential,” not certain.  Not every patient experiences every side effect.  Some don’t experience any.  That’s the precise meaning of potential and drug labels would be misleading if they suggested otherwise.

Batting second – fraud-based and warranty claims.  The court saw these for what they were – “repackaged” failure to warn claims which failed for the same reasons.  Id.

Up third – negligent infliction of emotional distress.  Here the court found plaintiff did not satisfy the requirements of the claim.  An emotional distress claim is when plaintiff can demonstrate that she suffered a physical harm caused by a psychological trauma.  Here, there is no dispute that plaintiff alleges her physical injuries were caused by defendant’s medical device, not a psychological trauma.  Id. at *5.

Now that’s three strikes and in real baseball we’d say the pitcher retired the side – three up, three down.  But, there’s a fourth claim to resolve so we’re going to say –

Batting clean-up – punitive damages.  Under Florida law, for a plaintiff to recover punitive damages, she must demonstrate by “clear and convincing evidence” “that the defendant was personally guilty of intentional misconduct or gross negligence.”  Id.  “Clear and convincing” is a heightened standard of proof by which the “sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.”  Id.  That is the burden plaintiff carries at trial and carries to defeat a motion for summary judgment on punitive damages.  Defendant only has to point to the lack of sufficient evidence.  Id.

The court found that in the mesh MDLs, only one bellwether decision ruled on the issue at summary judgment denying the motion under Georgia, Mississippi, North Carolina, and Wisconsin law.  Id. at *6.  Based on that, a court in the Middle District of Florida in another mesh case recently ruled the same.  Id. (citation omitted).  The Nunez court, however, did not find any of those decisions dispositive because the punitive damages inquiry is a fact specific one.  And the facts here were not sufficient to meet the heightened “clear and convincing” standard.  Plaintiff relied on internal company documents that only discuss a different product, not the one used in plaintiff’s surgery.  The plaintiff did not demonstrate a connection between that product and the one at issue in the case, and the court was not willing to take that leap on its own.  Id.  Plaintiff only argued about what defendant “should have done” or “should have known.”  That was not enough.  Also, while punitive damages are “generally a fact-intensive inquiry,” they are no different than any other claim and a motion for summary judgment can be granted where no issues of disputed fact are found.

So, it’s four up and four down in our products liability version of baseball.  If we aren’t getting live baseball soon, this blogger will just have to re-watch the Orioles 1983 season.  Nothing soothes the soul like a little Cal Ripken Jr, Jim Palmer and Eddie Murray.